Taylor v. Larkin

• Decision Date: 31 July 1848
• Citation: 12 Mo. 103
• Parties: TAYLOR v. LARKIN, ASSIGNEE OF BLOCK.
• Court: Missouri Supreme Court

12 Mo. 103

TAYLOR

v.LARKIN, ASSIGNEE OF BLOCK.

Supreme Court of Missouri.

July Term, 1848.

APPEAL FROM STE. GENEVIEVE CIRCUIT COURT.

FRISSELL, for Appellant. To reverse the judgment of the court below, the plaintiff in error relies upon the following points: That a judgment of a court having jurisdiction of the parties and the subject matter in controversy, is conclusive until reversed; and that evidence to show that the trial was not upon the merits is not admissible. 1 Phillips on Ev. 321; Bernard v. Flanders, 12 Vermont, 657; 9 Mo. R. 792; Callahan v. Griswold, 1 Greenl. 596, note; Pike v. Hill, 15 Vermont, 183. That if admitted in any case, the magistrate who rendered the judgment cannot be admitted to show a different state of facts from what his entries upon his docket shows. That the court gave illegal instructions to the jury in behalf of the plaintiffs below, and refused to give proper and legal instructions asked for by the defendant.

COLE, for Appellee. The plaintiff submits the following points: 1st. That at the time of the commencement of the actions before Hays, justice of the peace, on these notes, the legal interest therein was not in plaintiff, neither had he a subsisting cause of action in them until after the termination of said suits before the justice. 2nd. In order to bar a recovery on the part of Thomas H. Larkin in this case, it was surely necessary to show on the trial before the justice, on the part of defendant, that he, Larkin, had the legal interest in the notes in suit. 3rd. Upon the trial the legal cause of action was in Morris Block. 4th. Larkin's subsequently acquired right to these notes cannot be prejudiced by the proceedings before the justice, which could only affect him if he then had title; but having none, he could be deprived of nothing. 5th. The interference by counsel to prevent the justice from filling up the blank indorsement on the trial, had an ugly squinting towards an attempt which might in the end deprive Larkin of a just debt. 6th. The defense, then, it is contended, presents no bar: indeed, if it was otherwise, the shadow would take the place of the substance. 7th. Hays' testimony is pertinent, and does not impugn the record, neither vary or contradict. He relates the incidents that transpired before the suits were brought, the point made by the counsel in defense, his desire to obtain a confession of judgment so as to save costs, and finally that the judgment was not upon the merits but a non-suit, and therefore he permitted the withdrawal of the cause of action. 8th. The technical strictness of a common law court cannot be exacted of justices of the peace, who are mostly illiterate, we must therefore look to their good intention, and mold and shape them so as to answer the great ends of justice. 9th. There were some instructions asked by defendant and refused by the court to which there was an exception; but the principle I contend for renders them of no use, and the defendant could not be prejudiced by the refusal of the court to give them. 10th. I am aware of the rule that when the same subject matter has been fairly put in issue and once tried upon its merits, it cannot be again litigated. But this rule does not reach the case at bar. The case before the justice was not tried upon its merits; the merits were not fairly put in issue. The plaintiff had neither title nor merits. Block had both, and was not a party to the suit. The style of the suit before the justice, was a mere clerical mistake committed by the justice himself.

SCOTT, J.

This was a suit by petition in debt on three promissory notes, executed by Taylor to Morris Block, and by him assigned to the plaintiff. The notes were not negotiable. The defense was the plea of a former judgment for the defendant. Verdict and judgment for plaintiff. Morris Block assigned the notes sued on in blank, and placed them in the hands of a justice of the peace, who brought two suits on them in the name of Thomas H. Larkin, assignee of Morris Block. The transcript of the...